Date: 19980805
Docket: 96-4636(IT)I
BETWEEN:
BEVERLEY RECOSKIE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Somers, D.J.T.C.C.
[1] This appeal was heard in Pembroke,
Ontario, on July 13, 1998, pursuant to the Informal Procedure of
this Court concerning the Appellant's 1992, 1993 and 1994
taxation years.
[2] The issues are whether:
(a) the Appellant was entitled
to receive child tax benefit (CTB) in respect of more than one
"qualified dependant" for the months of February 1993
to June 1993 of the 1992/1993 benefit years and for the months of
July 1993 to December 1993 of the 1993/1994 benefit years;
and
(b) the Appellant was overpaid CTB in
the amount of $425.00 and $510.00 for the months of February 1993
to June 1993 of the 1992/1993 benefit years and for the months of
July 1993 to December 1993 of the 1993/1994 benefit years
respectively.
[3] The Respondent relies on sections
122.6, 122.61 and 122.62 and subsections 164(2), 165(3.1),
225.1(2), 248(1) and 252(4) of the Income Tax Act (the
"Act") as amended for the 1991 and 1992
"base taxation years" which relate to the 1992/1993 and
1993/1994 benefit years respectively.
[4] The Respondent submits that the
Appellant was not entitled to receive CTB calculated pursuant to
section 122.61 of the Act, for the months of February to
June 1993 of the 1992/1993 benefit years and for the months of
July to December 1993 of the 1993/1994 benefit years, for more
than one "qualified dependant", as the Appellant was
not the "eligible individual", within the meaning of
section 122.6 of the Act, of Richard Recoskie, as she
was not the parent who primarily fulfilled the responsibility for
the care and upbringing of Richard Recoskie for the said
periods.
[5] In computing the Appellant's
CTB for the 1992/1993 and 1993/1994 benefit years, the Minister
made the following assumptions of fact which were admitted,
denied or ignored by the Appellant:
"(a) the Appellant
and her ex-spouse, namely Andrew Recoskie, separated on or about
September 1, 1990 and were divorced in October 1992;
(admitted)
(b) at all relevant
times, the spouse and her ex-spouse were the parents of two
"qualified dependants" within the meaning of
section 122.6 of the Act, namely Richard and Adam
Recoskie; (admitted)
(c) starting
February 1993, the Appellant's ex-spouse was the parent
responsible for the support, care and upbringing of one of the
two "qualified dependants" described in subparagraph
14(b) above, namely Richard Recoskie; (admitted)
(d) the Appellant
was not the "eligible individual" within the meaning of
section 122.6 of the Act, in respect of
Richard Recoskie, starting February 1993 for purposes of
calculating CTB pursuant to section 122.61 of the Act;
(admitted)
(e) with respect to
the 1992/1993 benefit years, the Appellant was entitled to
receive CTB for the month of January 1993 in respect of two
"qualified dependants" and only for one "qualified
dependant" for the months of February 1993 to June 1993;
(ignored)
(f) with
respect to the 1993/1994 benefit years, the Appellant was
entitled to receive CTB for only one "qualified
dependant"; (admitted)
(g) with respect to
the 1992/1993 benefit years, the Appellant received CTB in the
amount of $170.00 for the months of January to June 1993, for a
total of $1,020.00; (admitted)
(h) with respect to
the 1992/1993 benefit years, the Appellant was entitled to
receive CTB in the amount of $170.00 for the month of January
1993 and $85.00 for the months of February to June 1993, for a
total of $595.00; (ignored)
(i) with
respect to the 1992/1993 benefit years, CTB in the amount of
$425.00 was overpaid to the Appellant for the months of February
to June 1993; (denied)
(j) with
respect to the 1993/1994 benefit years, the Appellant received
CTB in the amount of $170.00 for the months of July 1993 to
December 1993, for a total of $1,020.00; (admitted)
(k) with respect to
the 1993/1994 benefit years, the Appellant was entitled to
receive CTB in the amount of $85.00 for the months of July 1993
to December 1993, for a total of $510.00; (admitted) and
(l) with
respect to the 1993/1994 benefit years, CTB in the amount of
$510.00 was overpaid to the Appellant for the months of July 1993
to December 1993." (denied)
[6] The Appellant and her ex-spouse
were married in 1972; two children were born from that union,
namely Richard born on September 25, 1977 and Adam born on May
29, 1979. The Appellant and her ex-spouse were divorced in 1992
and bound by an amended separation agreement as of February 1,
1994.
[7] The Appellant thought that she was
entitled to the CTB pertaining to Richard as she had joint
custody of him. In fact Richard moved in with his father in
February 1993. The Appellant admitted that she was not the
"eligible individual" within the meaning of section
122.6 of the Act in respect of Richard as of February
1993.
[8] The definition of "eligible
individual" in section 122.6 of the Act reads as
follows:
"eligible individual" - "eligible
individual" in respect of a qualified dependant at any time
means a person who at that time
(a) resides with the qualified dependant,
(b) is the parent of the qualified dependant who
primarily fulfils the responsibility for the care and upbringing
of the qualified dependant,..."
[9] Evidence has shown that Richard
moved in with his father in February 1993. The Respondent rightly
concluded that the Appellant was not the "eligible
individual" within the meaning of section 122.6 of the
Act as she was not the parent who primarily fulfilled the
responsibility for the care and upbringing of Richard for the
said periods.
[10] The appeal is dismissed.
Signed at Ottawa, Canada, this 5th day of August 1998.
D.J.T.C.C.
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